Nautilus Swell - Images used without permission
Posted 11 February 2013 - 01:47 PM
I went on a trip with them in May of 2011. Upon returning, the dive master aboard saw pictures on my facebook page and sent the link to their office. The office asked me if I would do a blog post and include photos. I did so, but I asked that other than the blog post my photos not be used without my permission. They agreed and put up the blog post. Since then, they have used two of my pictures (for a few months each) as some of the main photos on their homepage. They have used two of my photos in their email newsletter. And two of my photos are currently up on their blog under blog posts by people other than myself. The photos on their blog are credited to me. The other four uses had my copyright cropped off.
The photos are all very high quality. Three of them were unique situations where I was able to capture photos that would be extremely difficult or impossible to replicate. And in my opinion they are higher quality photos than Nautilus typically uses in their marketing materials (other than when photogs contribute to their blog). According to the Internet Archive, the first infringement started approximately November 2011. I noticed it in February, and I have been trying to get compensation since then. Because I have been a customer of the Nautilus twice, I like the people involved, and I hope to be a customer many times in the future, I have asked for minimal compensation. After the first infringement I asked for $200 in credit towards a future trip, but since then there have been five more infringements. My most recent ask was for $1200 in credit towards a future trip or a $1000 check -- their choice.
I have been passed around to retell my story to six different Nautilus employees. Each time, it is if I am starting over completely and they don't know they are using my images. All of the people have been very poor at replying to emails, and I have had to spend a lot of time following up. My emails now are going unanswered. The latest is that Mike Lever got involved. First he told me, "I am an avid photographer myself and would be furious if I perceived that someone was using my images for commercial gain after taking the copyright off. That's stealing. I would never condone it." After a few months of no action, I set a deadline. So after 11 months of showing his employees that these were my files (11 months of back and forth and back and forth), Mike Lever's latest response is that he doesn't believe I took the photos. He asked me to watermark my raw files and send them to him as proof. He said he won't engage in any negotiation until I do so. I let him know that I am unaware of any way to watermark a raw file and I am reluctant to send my raw files because of how my photos have been repeatedly (accidentally?) misused, but that I could send him screenshots that showed the pics along with the Nikon .nef extension of the photos in my Lightroom photo library. I could also send screenshots of the pics that come before and after in the sequence. I asked him if that would suffice as evidence for him. I offered to send those to him on January 29 and as of Today, February 11, I have still received no response. I have also repeatedly asked Mike Lever to call me because some of his emailed questions suggest that his employees haven't told him the whole story, but to this point he has declined to do so.
I don't presume to know what is going on in the Nautilus brain trust regarding dealing with me. But it seems that their modus operandi is to be extremely apologetic and assure me that they will get the the bottom of this and resolve it fairly with me, then never follow up with me, then when I follow up pass me on to the next person. Now that I have made it to the top of the organization, my follow up is being met with accusations and denials. It is extremely frustrating. I am sure many photographers deal with this kind of thing all the time. But I never have before. So I don't know what to do next. Does anyone have any specific suggestions? Thanks,
Posted 11 February 2013 - 02:03 PM
I agree that sending the raw file is out of the question given the events to date.
Edited by Ronyx, 11 February 2013 - 02:04 PM.
Posted 12 February 2013 - 10:39 AM
Are your images registered with the US copyright office?
What jurisdiction/country does the company questioning your ownership of the rights reside in?
Is the quoted $200 use per month? Per year? Or longer?
How many images of yours are now being used?
Do the images contain your metadata? Or has this been stripped?
Posted 12 February 2013 - 10:59 AM
They are not currently registered with the US copyright office, but that is something that I will do if I can't reach an amicable agreement shortly.
Nautilus is a Canadian company, but their web registration and hosting appears to be in the USA (as am I).
The agreement I offered was meant to cover all past uses, but no ongoing or future uses. But after 11 months of back and forth. I recently set a one week deadline for them to accept my offer. They missed that deadline. So currently, there is not an offer on the table from either party.
Two of my images are currently on one of their sites (nautilusswellstories.com) and they both contain my metadata and my name in the filename. Two images appeared on their homepage in the past, but they took them down when I alerted them they were using my photos without permission.The metadata was stripped before they put them on the homepage. And they have used two images in their email newsletter. In the newsletter, my photos were used as part of a composite. I haven't checked, but it is doubtful that the composite would have my metadata.
I appreciate any input you can offer.
Posted 12 February 2013 - 11:16 PM
Here's what I think* what I would do;
Because the company is Canadian, I don't think having the images registered with the US Copyright Office will help in this instance. As the images have been published (albeit without your consent) then the likelihood of secondary infringement is far higher than if the images remained on your hard drive, I would still register them. I think* the images would need to be registered as published works.
I think* the fact that embedded metadata is present, detailing your contact information, then this is proof enough. But this actually misses the point somewhat and you are being fed a touch of BS. I think* that in all cases, the user of the image must be prepared to provide evidence of a right to use for the image in question. This is why when I hear the "can we get a CD of your images?" I shudder somewhat for both parties...neither side are really looking after their own interests...but I digress. As there has been no evidence of a right to use then I would ignore any request to provide RAW files. The onus remains firmly on the user, not the creator, but as a matter of course I would be prepared to demonstrate proof of ownership and declare that on a Letter Before Claim (read on).
Here in the UK, I issued my very first Letter Before Claim for an infringement that may well end up going through the Patent County Court Small Claims Track. The infringer had been unresponsive, so after 14 days I issued the letter and within 2 days their solicitor had given written acknowledgement of receipt. I share this partly to help our UK friends, but also to give a clue as to what I think* the next step should be; start to consider legal action.
The issue will, I think*, come under Canadian law. I have no idea of the process or legal requirements in Canada....and having wrestled with the 'simple' UK process I would not want to get involved with it myself. So I would try and find if there is a possibility of a no-win-no-fee lawyer taking the case, or finding if https://www.imagerights.com/ would take up the matter for me, and hand it over to them.
I think* you have tried to settle amicably, but the company in question would appear to have little interest in responding in kind. There has to come a point where if all other means have failed, the only recourse is legal. It never fills me with joy to take such course of action, but neither do I appreciate being ignored, fobbed off or refused payment for my creative endeavours. So I am dammed if I do, and starved if I don't.
Best of luck. I would be interested to know what you find out about Canadian law, so if you get a mo an update would be useful.
*I'm not a lawyer...what I think might not be based on any known legal framework. Take this advice as you see fit...no warranty expressed or implied!
Posted 13 February 2013 - 01:41 AM
Yes. In such situations, the FIRST thing that you should do is to send an invoice - stating exactly what usage the invoice covers. If the image user then falsl to pay you can look into legal action to enforce. Also print out and retain copies of AlLL correspondence as, should things go so far, courts love detailed and comprehensive evidence that you have tried to act reasonably and have explained the situation throughout. In this particular situation my guess is the Canada has a system similar to the UK's 'small claims court' mechanism for the recovery of 'small' amounts and its probably available on-line. Make yourself conversant with how this operates and if you need a follow up letter after your invoice 'pay by' date, clearly detail the next steps which you will take to enforce so that it is clear that you are not simply 'trying it on'. I once had only to quote the reference of the form used to submit a claim to the small claims court to obtain payment..... clearly the (now ex-) customer had been there before.
Does anyone have any specific suggestions? Thanks,
Posted 13 February 2013 - 02:55 AM
I once had only to quote the reference of the form used to submit a claim to the small claims court to obtain payment..... clearly the (now ex-) customer had been there before.
UK-specific comment follows; Since a ruling (last couple of years) forced by some clever lawyers in the BBC infringement cases cannot be heard in what we know in the UK as the Small Claims Court. The BEEB lawyers argued that Small Claims was for contractual enforcement and as the images were infringed, no contract existed. Sending in a invoice does not create a contract either...the infringer can ignore it.
So we are forced to use the Patent County Court to seek redress. There is a small claims track (<£5k) that keeps costs down for both parties. If anyone wants or needs specific advice, just PM me.
Using the UK Small Claims Court might work if the parties are unaware of the ruling, but if they are slippery you will be back at square one having spent time wandering down a blind alley I'm afraid.
Edited by decosnapper, 13 February 2013 - 02:55 AM.
Posted 13 February 2013 - 06:12 AM
". . . the work must be created by a person who is a citizen or resident of Canada, or connected with another country that adheres to the Berne Convention or a similar international copyright treaty, or is first published in such a country. Canadian copyright law applies to works in Canada. If a work created in Canada is used in another country, then that country's copyright law applies.
There is no requirement to register copyright work in Canada. Purchasing a certificate of registration can provide proof that the work is protected by copyright and that the registered owner is the owner of the copyright in that work. "
http://www.capic.org...r=What You Sell
Edited by Ronyx, 13 February 2013 - 06:33 AM.
Posted 13 February 2013 - 06:32 AM
Best of luck and keep us informed of your progress.
Posted 05 March 2013 - 09:46 AM
I've successfully gone after a couple of companies who've used my images without my permission and they were ordered compensated by the court. Having gone through the process specifically here in British Columbia, there's a couple of things that you should know.
1) If you go into small claims court, you will need to do it in the court system of the city where the violator has offices. In the case of the Nautilus, it would actually be where I am right now, in Richmond. You have to file the case here in Richmond Small Claims then send the motion to the Nautilus by registered mail or personal delivery. This should show them that you are serious about going after them.
2) If they don't settle (thinking that you are an out of towner) and the suit goes to court, you will have to come back to Canada on your appointed court date.
I would recommend a couple of things
1) DO NOT send an invoice any more, if you do go to court, then you'll be limited to that invoice amount, I would bring standard usage rates from an established photographic site to show what compensation is to be expected. My claim was awarded 3x the usage due to infringement.
2) If you do go to court, then it will be up to the Nautilus to prove that it was not you who took the image, you have the RAW files and can easily show the judge your NEF files.
Best of Luck
SLS Photography, when your images matter....
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